Plaintiff M68-15 v Minister for Immigration and Border Protection & Ors; Plaintiff M80-15 v Minister for Immigration and Border Protection & Ors [2015] HCATrans 198 (17 August 2015)

Last Updated: 18 August 2015

[2015] HCATrans 198

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M68 of 2015

B e t w e e n -

PLAINTIFF M68/2015

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

TRANSFIELD SERVICES (AUSTRALIA) PTY LTD (ACN 093 114 553)

Third Defendant

Office of the Registry
Melbourne No M80 of 2015

B e t w e e n -

PLAINTIFF M80/2015

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

TRANSFIELD SERVICES (AUSTRALIA) PTY LTD (ACN 093 114 553)

Third Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 17 AUGUST 2015, AT 9.32 AM

Copyright in the High Court of Australia

____________________

MR R. MERKEL, QC: If your Honour pleases, I appear for the plaintiffs in each matter. (instructed by Human Rights Law Centre and Stacks Goudkamp Solicitors)

MR G.R. KENNETT, SC: May it please the Court, I appear with MR P.D. HERZFELD, for the first and second defendants in each matter. (instructed by Australian Government Solicitor)

MR S.P. DONAGHUE, QC: May it please the Court, I appear with MS K.E. FOLEY, for the third defendant in each matter. (instructed by Corrs Chambers Westgarth Lawyers)

HIS HONOUR: Mr Merkel, where are we?

MR MERKEL: Your Honour, first of all, can I say the time that your Honour has given us, the extra week has been productive. We have late last night received the latest version of the special case from the Commonwealth which the parties have been negotiating on all week. There are still a few issues between us and also the special case has to annex a large number of documents, not all of which we have seen but we do not expect any problem arising from it. This is dealing with M68, and I will explain where M80 fits in a moment, if I may, your Honour.

HIS HONOUR: Yes.

MR MERKEL: Subject to anything your Honour may indicate, we are hopeful that we can reach agreement, have a special case filed and have our pleadings catch up to the special case - and I will explain that in a moment, if I may - by Thursday morning. We are conscious of deadlines, your Honour, but the facts are complex, and getting an agreement on them, from our part, many of them are outside our knowledge because they are in the knowledge only of the government of Nauru and the Commonwealth but we are closing that gap and we believe we have almost closed it.

Can I just indicate the issue with the pleadings, your Honour? What has happened is we have delayed, as has the Commonwealth delayed, amending pleadings to ensure the documents as they have emerged are reflected in the pleadings, and of the issues as they have emerged in the preparation of the special case are reflected in the pleadings. What we are hopeful of doing, your Honour, is to have the pleadings amended, statement of claim, amended defence and the reply, all in order by Thursday morning so your Honour can see what the issues are in the pleadings and what the questions are in the special case. We have not yet reached agreement on everything but we have come a very long way and hopefully after this morning’s hearing we will be in discussions with our learned friends to see if we can resolve the outstanding issues that seem to be between us at this stage.

We have used M68, being the Nauru action, as the action that should go forward. We have, at the same time, been following with M80 but using the model that we will agree on with M68. What we need to do and expect hopefully to be able to do by Thursday is to see if the Papua New Guinea claim raises any different issues or whether all of the substantial issues will be able to be resolved in M68. There is a substantial overlap but some differences and we have not yet quite assessed whether those differences are significant or not.

HIS HONOUR: So that it is possible that 68 will go ahead for hearing but 80 will not?

MR MERKEL: It is possible, your Honour. That depends on what the outcome is on the differences, but at this stage I cannot give your Honour a definitive answer but we should be in a position to do that on Thursday morning, if that is acceptable to your Honour.

HIS HONOUR: What is the plan or proposal? To come back here on Thursday morning, is it, to make directions for it?

MR MERKEL: Yes, your Honour. If we can reach agreement, we would hope to be able to submit documents to your Honour, say late on Wednesday.

HIS HONOUR: Yes.

MR MERKEL: So your Honour will have a fair understanding of what the parties will be seeking to do on Thursday morning, subject to any minor matters being sorted out on Thursday morning.

HIS HONOUR: I think we have reached the end, Mr Merkel. If it does not happen this week, it just cannot happen. That is to say, if we do not get this settled by the end of this week, plus the other directions, we are just out of time.

MR MERKEL: I think we are cognisant of that, your Honour, and we have been very conscious of that in the way we have been dealing with it, as between the parties to date.

HIS HONOUR: Yes, all right. Thank you. Mr Kennett.

MR KENNETT: Your Honour, there is nothing else that I want to raise at the moment.

HIS HONOUR: I take it that you consider it to be realistic that we will get some sort of agreement by Wednesday night and, thus, can make directions by Thursday.

MR KENNETT: Yes, I think it is, your Honour.

HIS HONOUR: Thank you. Dr Donaghue, anything to say?

MR DONAGHUE: No, nothing to add, your Honour.

HIS HONOUR: Mr Merkel, if you can get things together by Wednesday night and we can make directions on Thursday morning, I would be directing that you would have to put your submissions in by 28 August, the defendant’s in by 11 September and replies by 18 September. Is it likely we are going to have interveners?

MR MERKEL: I doubt it, your Honour. We have not been advised of any intervention so we do not expect it but there may be some organisation such as the Human Rights Commission that may wish to intervene but we have not heard of anyone.

HIS HONOUR: And the responses to the 78B notices?

MR MERKEL: We have not had any responses about anyone wanting to intervene. Would your Honour excuse me for just a minute?

HIS HONOUR: Certainly.

MR MERKEL: I am instructed, your Honour, that the responses of a number of the Attorneys are they want to know what is happening in the case and then they will make a decision.

HIS HONOUR: I see. Well, they will just have to catch up if we are going ahead. Very well, I will adjourn the further hearing of this until 9.15 am next Thursday morning, 20 August.

MR MERKEL: If your Honour pleases.

HIS HONOUR: And, while I will not direct it, I will ask that you file the agreed draft special case by Wednesday evening, if you could please.

MR MERKEL: Thank you, your Honour.

HIS HONOUR: Thank you. Adjourn the Court.

AT 9.39 AM THE MATTER WAS ADJOURNED